Ruark v. International Union of Operating Engineers, Local Union No. 37

⁵⁷⁸ Parke, J., delivered the opinion of the Court. The General Assembly of Maryland passed a statute known as chapter 91 of the Acts of 1910, whose sections 2 and 3 constitute that portion of the Public Local Laws of the City of Baltimore which is as follows: “516. That eight hours shall constitute a day’s work for all laborers, workmen or mechanics who may be employed by or on behalf of the Mayor and City Council of Baltimore except in cases of extraordinary emergency which may arise in time of war or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life; provided, that in all such cases the laborer, workman or mechanic so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day’s work; provided further, that the rate of per diem wages paid to laborers, Avorkmen or mechanics employed directly by the Mayor and City Council of Baltimore shall not be less than two dollars per diem; provided further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to the laborers, workmen or mechanics employed by contractors or sub-contractors in the execution of any contract or contracts in any public work Avithin the City of Baltimore. “516A. That all contracts hereinafter made by or on behalf of the Mayor and City Council of Baltimore with any person or persons or corporation, for the performance of any work with the City of Baltimore, shall be deemed and considered as made upon the basis of eight hours constituting a day’s work, and it shall be unlaAvful for any such person or persons or corporation to require or permit any laborer, workman or mechanic to work more than eight hours per calendar day in doing such work, except in the cases and upon the conditions provided in section 516 of this article.” The statute further provides that any officer of the municipality, or any person acting under or for such officer, or any contractor or sub-contractor or other person acting for them, violating any of these provisions, shall be fined not less than ten dollars nor more than fifty dollars for every offense; and ⁵⁷⁹ concludes with an exclusion of the employees of the fire department, of Bay View Asylum, and of the jail, from the operation of the act.

Acts of 1910, ch. 194, pp. 642-644; Baltimore City Charter & P. L. L. (1927), secs. 516, 516A-C, pp. 323, 324. The bill of complaint alleges that the Mayor and City Council of Baltimore found it necessary to provide extensive sewers and drains in various sections of the city, and for this purpose and with the approval of the sewerage engineer the municipality entered into eight separate contracts with a like number of distinct legal entities which undertook the construction of the several public improvements. In every one of the eight contracts there was a general stipulation by whose terms it was agreed that the building of the respective sewers and drains should proceed in conformity with the provisions of the statute quoted, and that the several promisors should indemnify and protect the municipality, its officers, agents, and servants, against any claim or liability growing out of their violation.

The contractors began the building of the sewers and drains under the supervision and direction of the engineer of sewers, a municipal official, and, while the work was being done, the bill of complaint on this record was filed against the municipality, its engineer of sewers, and the eight contractors. In addition to what has been stated, the bill of complaint alleges that it would be some time before the drains and sewers would he completed; and that, in disregard of the statute and the terms of the contracts, the municipality, its engineer of sowers, and the eight other defendants, were permitting and requiring the laborers, workmen and mechanics, while employed in the building of the several drains and sewers, to work more than eight hours per calendar day, without there being any emergency arising in time of war or a necessity to protect thereby property or human life. The plaintiffs further aver that the defendants, although asked to stop, have continued in this violation of the statute; and that it is the intention of the defendants “so to disregard and violate said provisions and requirements of said sections of the charter of ⁵⁸⁰ Baltimore City and to disobey, nullify and set the sa'me at naught,” unless restrained by the chancellor. The plaintiffs are (a) the International Union of Operating Engineers, Local Union No. 37, a labor organization, for the social and economic benefit and general welfare of its members, who are largely residents, citizens, and taxpayers of Baltimore City; and (b) James J. Anderson and William Howard Erskins, who are officers of Local Union No. 37, and who, with Michael Chapman, the fourth and other plaintiff, are members of the local union, and mechanics and workmen, residents, citizens and taxpayers of Baltimore City.

The bill of complaint is declared to be, not only for the benefit of the plaintiffs, but also for that of all other taxpayers, citizens and residents of the City of Baltimore, who may desire to come into the proceedings as complainants. No one, however, has intervened. The plaintiffs are those who began the proceedings; and, because of their averred interest in securing and maintaining the object of the local union, in reducing the hours of labor, in securing a higher standard of wages, in elevating the moral, social, and intellectual condition of its members and of all other workmen in Baltimore as well as elsewhere, and in the enforcement of the law generally in the municipality and, particularly, with respect to the hours of labor of those employed under contracts for public improvements, the bill charges that the subsisting and prospective violation of the statute in the manner described will so deprive the complainants of their rights as residents, citizens, and taxpayers as to cause them to sustain irreparable loss and injury, for which they will have no adequate remedy at law. The recited facts constitute the substance of the bill of complaint, which prays for general relief and the issuance of an injunction'against the ten defendants, restraining them “from requiring or permitting any workman, laborer or mechanic to work more than eight hours per calendar day in or upon any work in or upon which they may be employed under or in the performance or execution of the contracts, or any of the same, made by or on behalf of the Mayor and ⁵⁸¹ City of Ealtimore with the defendant contractors, or any of them aforesaid, and from requiring or permitting more than -eight hours to constitute a day’s work for any of said laborers, workmen or mechanics, under or in the performance or execution of any of said contracts in the construction or building of sewers or drains for said City.” A number of the defendants interposed demurrers, which were overruled, and the injunction was directed to be issued in the form of the prayer, except that the chancellor added a provision suspending the operation of the injunction in cases of extraordinary emergency which may arise in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of human life.

Separate appeals were taken from this decree by the municipality and its engineer, and six of the other defendants. The two major questions brought up on these appeals are the constitutionality of the statute and the right of the plaintiffs for relief by way of injunction. As each of these questions goes to the maintenance of the complaint in equity, they alone will be discussed. 1. The constitutionality of the Act of 1910, ch. 94, was unsuccessfully attacked in Sweeten v. State, 122 Md. 634 , and in Elkan v. State, 122 Md. 642 , which were both affirmed by a memorandum decision of the Supreme Court of the United States in Elkan v. Maryland, 239 U. S. 634 , 60 L. Ed. 478 .

Our decisions and their later express affirmance by the Supreme Court were upon the authority of Atkin v. Kansas, 191 U. S. 207 , 48 L. Ed. 148 , which had under review a statute of Kansas, which was in every way similar to the Maryland enactment, except that the latter applied to a single municipality, while the former affected all those employed by or on behalf of either the state or any of its political subdivisions. In its disposition of the constitutional point, the Supreme Court, in Atkin v. Kansas, supra,, confined its discussion to the power of the Legislature to limit the hours of work or labor of a public character done by or on behalf of either the state or a municipal corporation, but ⁵⁸² apparently assumed that the further provision that those so employed should not be paid “less than the current rate of per diem wages in the locality where the work is performed” was necessarily included within the principle upon which the decision proceeded: “that the work being’ of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching a matter is final so long as it does not, by its regulations, infringe the personal rights of others, and that has not been done,” Page 224. The view that the decision was an affirmance of the constitutionality of the act with respect to both the hours of labor and the minimum daily wage is sustained by the fact that the traverser was indicted, under the first count, for a violation of the one offense and, under the second count, for a violation of the other; and was found guilty and sentenced to pay a fine on each count of the indictment.

His conviction and sentence were affirmed, first by the state tribunal, and then by the Supreme Court. And, so, in the Maryland cases cited. In Sweeten v. State, supra, the indictment contained thirty counts, the odd numbered counts were for a violation of the provision for a calendar day of eight hours, and the even numbered counts were for a payment of less than the daily wage current in the locality for a day’s work of eight hours. The demurrer was to all the counts, and it was overruled.

The accused was found guilty and sentenced, and this judgment was affirmed on appeal. While the opinion, on the constitutional question, followed the line adopted in AtTein v. Kansas, supra, yet the constitutionality of the limitation of the hours for a day’s labor and of the minimum wage to be paid was necessarily involved in the judgment on appeal, which is decisive of the constitutionality of the Act of 1910, ch. 94. The plaintiffs, however, urge that Atkin v. Kansas, supra, is no longer an authority, since it has been reversed by the recent decision of Connally v. General Construction Co., 269 U. S. 385 , 70 L. Ed. 322 . In this case the proceedings were ⁵⁸³ begun to enjoin certain state and county officers of Oklahoma from enforcing the Oklahoma statute creating an eight hour day for all persons employed by the state or by any county, city, township or other municipality of the state, and providing that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to those so employed by or in behalf of the State or its political subdivisions.

Penalties are denounced against the violation of these enactments, and the injunction was sought to prevent their ruinous imposition, through threatened criminal prosecution for an alleged failure of the plaintiff, who was employed by the state in the building of a public improvement, to pay to its employees the prescribed wages. It is a condition for the commission of a crime within the contemplation of the statute that ther*e be an actually existing current rate of daily wages in the locality where the work is being performed. The averments of the bill, as well as the official investigaton, showed that no current rate of wages obtained where the work was being performed, so the defendant, which had observed the eight hour day legislation, was guiltless of crime, and the bill could have been sustained on that ground, which was the one that persuaded Mr. Justice Holmes and Mr. Justice Brandéis to concur in the result. The majority of the court, however, rested their conclusion on the proposition that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law”;and enforced this rule against the law, which was declared to be fatally defective as a criminal statute because, in the first place, the words “current rate of wages” do not denote a specific or definite sum, and, in the second place, the qualifying word “locality” is not descriptive of the area included.

The opinion does not refer to the cases of Atkin v. Kansas, 191 U. S. 207 , 48 L. Ed. 148 , nor to Elkan v. Maryland, 239 U. S. 634 , 60 L. Ed. 478 ; and, until the Supreme Court shall expressly reverse these cases, it is our judgment that ⁵⁸⁴ uniformity and certainty in the administration of the criminal law in this state should constrain us to follow our decisions in Sweeten v. State and Elkan v. State, supra. It would seem that this course is, also, indicated by considerations of great weight. As stated, if no current rate of wage exists within the terms of the statute, no crime is committed, no matter what may be the wage paid. So, the question is, fundamentally, one of fact, but the necessity for a fact to be proved does not make the fact so in issue indefinite or uncertain.

And here the statute itself aids in the definition. The wage is not of every man, but the wage of a laborer, a workman, or a mechanic, so the inquiry is confined f° three distinct, large, and familiar classes, whose wages are of common knowledge or easy ascertainment. Then the wage is not what one of these classes would receive on a weekly, monthly, yearly or periodic basis, but day by day; and, moreover, this daily wage must be the current rate of his class similarly employed and paid in the locality where the public work is to be performed. As here used, the term “current rate” means the charge for or valuation of the daily labor in question according to a scale or standard generally received or established by common consent or estimation.

Wages, particularly those of such numerous classes as laborers, workmen, and mechanics, tend to uniformity and stability and so to an average or ordinary rate, which varies somewhat from place to place, and which Adam Smith speaks of as the “natural rates of wages” at the time and place in which they commonly prevail. Wealth of Nations, ch. VII. Hence, to restrict the current rate of the wages paid to the standard of the “locality” where the work is to be performed is an aid to certainty unless the word “locality” is intrinsically incapable of a definite meaning when construed according to accepted canons. A problem in construction of a statute is not to be abandoned until all the resources of the art are exhausted.

While “locality” is a word of relative meaning, its context commonly determines its meaning (Clinton v. Worcester ⁵⁸⁵ Consol. St. R. Co., 199 Mass. 279 ), and it has been held to mean neighborhood, vicinity, or the whole or part of a political unit. Foster v. Hart Consol. Min.

Co., 52 Colo. 459 ; State v. Tibbetts, 21 Okla. Cr. 168 ; State v. Fremont etc. R. Co., 22 Neb. 329 ; Pierce v. Dillingham, 96 Ill. App. 300, 313 ; City of Butte v. School District No. 1, 29 Mont. 336 . Eor has the use of the word “locality” been found incompatible with the certainty required in a statute imposing criminal penalties, since section 3 of the Interstate Commerce Act declares it “unlawful for any common carrier to make or give any undue or unreasonable preference1 or advantage to any particular person, company, corporation or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever,” and section 10 denounces the penalties for a violation of this section.

U. S. Code, Annot., title 49, ch. 1, sec. 3, par. (1), pp. 157, 158, 164-165, sec. 10, pp. 354-6; Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342, 354-360 , 58 L. Ed. 1341, 3349-1351 ; Cincinnati, H. & D. R. Co. v. Interstate Commerce Comm., 206 U. S. 142, 157 , 51 L. Ed. 995, 1002 ; Railroad Commission v. Chicago, B. & Q. R. Co., 257 U. S. 563, 578-580 , 66 L. Ed. 371, 379, 380 ; New York v. United States, 257 U. S. 591 , 66 L. Ed. 385 . Another illustration is found in the similar provisions incorporated in the Public Service Commission Aet of Maryland, Code, art. 23, secs. 365, 387, 400, 383.

State v. Fremont, E. & M. V. R. Co., 22 Eeb. 329; Murphy v. Worcester Consol. St. R. Co., 199 Mass. 279 . Thus it appears that the word “locality” has a place in important and enforced legislation; and, whatever may be the scope of its varying significance, its meaning in a particular statute is susceptible of being determined from the context, since the words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the legislature had in view. Endlich, Interpretation of Statutes, see. 73.

When so read it is ⁵⁸⁶ quite evident that, in the statute before the court, “locality” imports the area which embraces not only the actual site where the public work is to be performed but also such adjoining territory within which there then prevails a current rate of daily wages for the particular work to be done. In other words, “locality” defines a region, with the public undertaking as an axis or focal point, throughout which region the daily wage of the particular class to which the worker belongs is uniform. The clause, “the current rate of per diem wages in the locality where the work is performed,” may therefore be held to mean the charge for or valuation of the daily toil of a laborer, workman or mechanic, as the case may be, at a given labor, according to a scale or standard of money compensation then generally received or established by common consent or estimation throughout an area which includes, not only the actual site where the public work is to be performed, but also such adjoining territory within which the compensation does prevail. The construction adopted will assure the fulfilment of the legislative intention without being violative of any constitutional right or